## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN BROWN,

Plaintiff - Appellant, No. 97-2294
v. (D. New Mexico) CENTRAL NEW MEXICO CORRECTIONAL FACILITY; JOE WILLIAMS, Warden, Central New Mexico Correctional Facility; KEVIN R. WIGGINS, Captain; JOSE ROMERO, Captain; EDWARD CHAVEZ, Defendants - Appellees. (D.C. No. CIV-97-825-BB)

MARVIN BROWN,

Plaintiff - Appellant, No. 98-2051
v. (D. New Mexico) DAN RAMIREZ; JOYCE TERRASAS; PROBATION AND PAROLE DEPARTMENT,

Defendants - Appellees. (D.C. No. CIV-98-40-BB/JHG)-2-

MARVIN BROWN,

Plaintiff - Appellant, No. 98-2052
v. (D. New Mexico) CITY OF ALBUQUERQUE; ROSS C. SANCHEZ, Judge; BRUCE MCALLISTER, A.P.D. Officer; VERNON WILSON; DAN RAMIREZ; JOYCE TERRASAS, Probation and Parole Department; RUDY SANCHEZ; ALBUQUERQUE POLICE DEPARTMENT,

Defendants - Appellees. (D.C. No. CIV-98-41-BB/LCS)

MARVIN BROWN,

Plaintiff - Appellant, No. 98-2063
v. (D. New Mexico) CITY OF ALBUQUERQUE; ALBUQUERQUE POLICE DEPARTMENT; BRUCE MCALLISTER,

Defendants - Appellees. (D.C. No. CIV-98-42-MV/RJS)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

1 Under § 1915(g), a prisoner may not bring a civil a ction or appeal a judgment in a civil action or proceeding in forma p auperis if the prisoner has, “on three or more prior occasions, while incarcerated o r detained in any facility, brought an action or appeal in a court of the Unite d States that was dismissed on (continued...) -3- ORDER AND JUDGMENT *

Before ANDERSON , MCKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument. Marvin Brown, a state prisoner proceeding pro se, appeals the dismissal of four actions he brought pursuant to 42 U.S.C. § 198 3. The district court denied Mr. Brown leave to proceed in forma pauperis and di smissed each of his civil rights complaints because it found that Mr. Brown h ad, on at least three prior occasions, filed a civil action that was dismissed as frivolous or malicious or for failure to state a claim. 1 See 28 U.S.C. § 1915(g). In support of this finding, the1 (...continued)

the grounds that it is frivolous, malicious, or fai ls to state a claim upon which relief may be granted.” This “three strikes” provi sion does not apply, however, where the prisoner is under imminent danger of seri ous physical injury, see 28 U.S.C. § 1915(g). The district court specifically found that none of Mr. Brown’s civil rights complaints contained such an allegatio n. -4- district court cited the following three previous c ivil actions filed by Mr. Brown: Brown v. New Mexico District Court Clerks , No. CIV-96-0968 (D.N.M. Jan. 22, 1997); Brown v. McAllister , No. CIV-94-1462 (D.N.M. June 7, 1996); Brown v. Brennan , No. CIV-94-1010 (D.N.M. Sept. 30, 1994). The threshold problem in each of these appeals, how ever, is that Mr. Brown does not have the requisite three “prior occasions. ” Although case number 96-0968 was dismissed by the district court for fai lure to state a claim, that dismissal was vacated by this court on appeal and thus cannot count as a “prior occasion.” See Brown v. New Mexico District Court Clerks , No. 97-2044 (10th Cir. Mar. 19, 1998). Case number 94-1462, which wa s ultimately dismissed by this court as frivolous, see Brown v. McAllister , No. 97-2035 (10th Cir. Mar. 19, 1998), was only dismissed by the district court pur suant to a stipulated motion to dismiss the complaint. It therefore, can account f or only one “prior occasion.” Finally, while case number 94-1010 was dismissed bythe district court as frivolous, there is no indication in the record that Mr. Brown appealed this dismissal. Thus, this case can also account for on ly one “prior occasion.”-5-

Based on our calculations, therefore, Mr. Brown has only two “prior occasions,” and the district court erred in dismiss ing his claim under § 1915(g). Accordingly, the judgment of the district court in each of these cases is VACATED, and they are REMANDED to the district court for further proceedings. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge